MS 2023-06-M-Gates-June-23-2023-Municipal-Authority-to-Interview-Candidates-for-the-Okolona June 23, 2023

In Mississippi, can a city council interview candidates before appointing them to the local school board?

Short answer: Yes. Assuming the city's charter is silent, the city council may interview candidates for school board appointment under Mississippi's municipal home-rule statute, Section 21-17-5. The Open Meetings Act and ethics rules still apply, so consult the Ethics Commission and use proper procedures.

Disclaimer: This is an official Mississippi Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Mississippi attorney for advice on your specific situation.

Subject

Municipal Authority to Interview Candidates for the Okolona School Board

Recipient

Marsha Gates, Councilwoman, City of Okolona

Plain-English summary

Okolona is a special-charter municipality, meaning its governing body's powers come from the city charter rather than the general municipal statutes. The city council was preparing to appoint two members to the Okolona Municipal Separate School District board under Section 37-7-203(1) and asked whether the council could interview candidates first. The AG's answer assumed the charter does not address candidate interviews, and on that assumption the home-rule statute, Section 21-17-5, supplies the authority. Section 21-17-5 grants municipalities "the care, management and control of the municipal affairs" with broad powers "complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi." Under home rule, the council may interview candidates.

The opinion adds two practical pointers without ruling on them. First, the Mississippi School Boards Association and the Mississippi Municipal League can give procedural guidance on appointment processes. Second, the Ethics Commission should weigh in on when the interviewing crosses into Open Meetings Act territory, since interviews are typically a discussion of personnel and could fall within or outside open-meeting rules depending on context.

What this means for you

City council members in special-charter municipalities

Read your city's charter first. If it covers school board appointments and the interview question, follow it. If the charter is silent, you can build an interview process under home rule. Document your procedure in council minutes, including the criteria, the questions, and how interview information factored into the decision.

Municipal attorneys

The opinion is conditional on charter silence. Before counseling the council that interviews are allowed, do the charter check. Also, advise the council on whether the interviews need to be in open or executive session under the Mississippi Open Meetings Act (Mississippi's version is at Section 25-41-1 et seq., and personnel discussions have specific carve-outs). The AG explicitly punted that question to the Ethics Commission.

School board candidates

Expect a more formal process if your council uses interviews. Prepare for substantive questions about education priorities, fiduciary duties, and your understanding of school finance and governance. The interview is part of the appointment record.

Citizens and journalists

If the council interviews school board candidates, the public's access to those interviews depends on Open Meetings Act treatment. The general rule is interviews of named candidates can be held in executive session, but the council typically must come back into open session to vote. If a council appears to be using interviews to bypass public deliberation, the Open Meetings Act is the right place to push back.

Standard-charter cities

The opinion deals with a special-charter city. Most Mississippi municipalities operate under code charters and have their school-board-appointment authority structured by the general statutes. Section 21-17-5's home-rule grant still applies to those cities, so the underlying answer (interviews allowed) is likely the same, but verify your city's specific governance posture.

Common questions

What is a special-charter municipality?
A special-charter municipality is one whose powers derive from a charter granted by the legislature, rather than from the general code charter or Title 21 framework. Mississippi has a handful of these, and Okolona is one.

Does Section 21-17-5 actually let the city do anything not specifically forbidden?
Effectively yes. Section 21-17-5(1) says municipal home-rule powers are "complete without the existence of or reference to any specific authority granted in any other statute or law of the State of Mississippi." The major limits are the Mississippi Constitution, state law, and federal law.

What about appointments to fill vacancies?
The AG specifically noted the question concerned new-term appointments, not vacancy fills. Section 37-7-203(1) addresses new-term elections "by a majority of the governing authorities." Vacancy procedures may be different and should be checked separately.

Can the council interview candidates in private?
That is the Open Meetings Act question the AG referred to the Ethics Commission. Interviews involving personnel of a public body can sometimes be in executive session, but you have to comply with the Act's specific provisions for entering and exiting executive session.

Does the school board itself have to appoint?
No. Section 37-7-203(1) for municipal separate school districts puts the appointment in the hands of the municipal governing authorities, not the school board.

How many board members does the city appoint?
The opinion notes the city is appointing two members. The number depends on the school district's structure under Section 37-7-203 and any local act establishing the district.

Background and statutory framework

Section 37-7-203(1) controls the trustees of a municipal separate school district: "[e]xcept as otherwise provided herein, the trustees of such a municipal separate school district shall be elected by a majority of the governing authorities of the municipality." The statute does not address pre-vote interviews.

Section 21-17-5(1) is the municipal home-rule statute. It gives municipalities broad powers over "the care, management and control of the municipal affairs" subject to state and federal constitutional and statutory law. Where a specific procedural question is not addressed in either the city's charter or another statute, home rule fills the gap.

For special-charter municipalities, the AG's general approach (see MS AG Op., Carouthers (June 28, 2019)) is that the charter controls when it speaks; otherwise, general statutes and home rule apply. The Gates opinion follows the same framework.

The Mississippi Open Meetings Act (Section 25-41-1 et seq.) governs when public-body discussions must be held in open session and what can be moved to executive session. Personnel discussions are one area with carve-outs, but the procedures matter, and the Ethics Commission can issue advisory opinions.

Citations

Miss. Code Ann. § 21-17-5 (municipal home-rule authority)
Miss. Code Ann. § 21-17-5(1) (powers complete without reference to other statutory authority)
Miss. Code Ann. § 37-7-203(1) (trustees of municipal separate school district elected by governing authorities)
MS AG Op., Carouthers (June 28, 2019) (special charter municipality charter controls; general statutes fill silence)

Source

Original opinion text

June 23, 2023
Marsha Gates
Councilwoman, City of Okolona
301 Middle Street
Okolona, Mississippi 38860
Re:

Municipal Authority to Interview Candidates for the Okolona School Board

Dear Ms. Gates:
The Office of the Attorney General has received your request for an official opinion.

Background
The city of Okolona ("City") is a special charter municipality and its governing body, the Okolona
City Council ("Council"), is comprised of the mayor and Council. According to your request, the
governing body of the City is appointing two school board members to the Okolona Municipal
Separate School District ("District") pursuant to Mississippi Code Annotated Section 37-7-203(1).
Question Presented
May the governing body of the City interview candidates for a school board position?
Brief Response
Assuming the City's charter is silent regarding interviewing candidates for appointment on the
school board for the District, the Council may interview candidates pursuant to its "home rule"
authority set out in Section 21-17-5.
Applicable Law and Discussion
As a special charter municipality, the governing authority's powers flow directly from the City's
charter. MS AG Op., Carouthers at 1 (June 28, 2019). Thus, the specific provisions of that charter
should be used to answer any questions regarding the authority of the municipality; however, if
the charter is silent on a particular matter, general statutory provisions would apply. Carouthers at
1 (internal citations omitted). Assuming the special charter of the City is silent on your question,
this opinion will apply general statutory provisions.
As an initial matter, when you say in your request that the governing body of the City will be
appointing school board members, we understand that those appointments will be for new terms
on the board and are not appointments to fill vacancies. Regarding appointments for new terms,
Section 37-7-203(1) states, "[e]xcept as otherwise provided herein, the trustees of such a municipal
separate school district shall be elected by a majority of the governing authorities of the
municipality." We find no statutory provision authorizing a municipality to interview candidates
for the local school board or prohibiting same. Therefore, we turn to the municipal "home rule"
statute which grants the governing authorities of municipalities "the care, management and control
of the municipal affairs" so long as the municipality acts in accordance with the laws of the state,
and "the powers granted to governing authorities of municipalities in this section are complete
without the existence of or reference to any specific authority granted in any other statute or law
of the State of Mississippi." Miss. Code Ann. § 21-17-5(1).
Thus, it is the opinion of this office that the Council may interview candidates for appointment on
the District's school board pursuant to Section 21-17-5. We refer you to the Mississippi School
Boards Association and the Mississippi Municipal League for further guidance on appropriate
procedures. In addition, we recommend that you contact the Mississippi Ethics Commission for
guidance on when the interviewing of potential board members implicates the Open Meetings Act.
If this office may be of any further assistance to you, please do not hesitate to contact us.
Sincerely,
LYNN FITCH, ATTORNEY GENERAL
By:

/s/ Abigail C. Overby
Abigail C. Overby
Special Assistant Attorney General